McGrath, Alva Zane Jr ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. WR-66,056-01, -02, -03 & -04

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EX PARTE ALVA ZANE MCGRATH, JR., Applicant

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ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 881224-A, 940494-A, 940496-A & 940495-A

IN THE 179^TH JUDICIAL DISTRICT COURT

FROM HARRIS COUNTY

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   Per curiam. O R D E R  

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of aggravated sexual assault of a child and two counts of indecency with a child. He was sentenced to imprisonment for two life terms and two terms of ninety-nine years. The Fourteenth Court of Appeals affirmed his convictions. McGrath v. State, Nos. 14-03-00510-CR, 14-03-00511-CR, 14-03-00512-CR & 14-03-00513-CR (Tex. App.-Houston [14^th Dist.], delivered October 7, 2004, pet. ref'd).

Applicant contends that trial counsel rendered ineffective assistance because they failed to impeach the complainant's testimony and failed to object when the State argued, after the parties had rested, that the defense's forensics expert agreed with the computer analysis of the State's forensics expert.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's ineffective assistance of counsel claims. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

These applications will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.   

Filed: December 6, 2006

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